In any personal injury claim, obtaining your medical records is essential to proving that you were indeed injured and have medical expenses. A negligence action has certain elements to it that requires that any claimant prove the following by the standard of proof by a preponderance of the evidence:
- The defendant owed a duty of care to the claimant
- The defendant breached the duty of care
- The defendant’s negligent or reckless conduct caused the accident and the claimant’s injuries
- The claimant suffered an injury
It is the nature and extent of your injuries that primarily dictates the value of your claim and that convinces the insurer or self-insured entity that you are entitled to a certain sum in settlement – or a jury for their verdict. Although the testimony of a medical provider are important and often essential to proving your claim for damages, it is the documentary evidence or medical records that can provide direct and objective evidence of your injury.
Medical records provide:
- A history of what caused your injuries that can include certain statements that you made to an EMT or physician as well as document any your relevant past injuries and surgeries
- A record of the type of examination performed: neurological, orthopedic or psychological
- The result of diagnostic tests
- A record of what treatment is recommended
- A record of what treatment was administered
- A diagnosis
- Cost of the medical visits and care provided
A medical expert or specialist retained in your case relies heavily on your medical records in rendering opinions or conclusions about your condition, the necessity and reasonableness of your care and treatment, and prognosis.
Obtaining Medical Records
Your medical records are private, and you have a right of confidentiality from your records being disclosed under HIPAA and various Massachusetts state laws. However, a medical facility and provider has certain obligations to release copies of your records to you or your representative. All originals are kept by the facility or provider – these days, “originals” are electronic.
There are some exceptions to the release of records. For example, a facility must report patient injuries in case of a gunshot wound, a burn that covers at least 5% of the patient’s body, and a sexual assault although the name of the victim or patient is not disclosed. If a patient is found to have a venereal disease, the provider is permitted to report it to the patient’s fiancée or parents.
In respect to psychotherapy records, a provider is permitted to offer a summary of the records if full disclosure would adversely harm the patient. However, psychotherapy records must be released if:
- Pursuant to court order
- A patient’s request or by her attorney
- A mental health commissioner allows disclosure for the benefit or in the best interest of the patient
You or your retained personal injury attorney can make a simple request to the hospital or medical provider in a written form that authorizes the attorney, legal guardian, or estate administrator to receive them, though some facilities prefer to use their own request forms.
When making a request, be specific on the dates and which records you are requesting. You are entitled to copies of all X-rays, MRI or CT scans, though not necessarily for pathology slides. Those may be released to another medical provider if requested. Generally, we want the radiology “report” of the images, or the pathology “report”.
Release of Records
When you or your personal injury attorney requests your records, HIPAA requires that the HIPAA-covered physician or medical facility release copies to you within 30-days of your request. Should your records be kept in an off-site location, the physician has 60-days to release them. A physician can delay the request by an additional 30-days by making the request in written form stating the reasons for the delay and the day when the records will be released.
In a Social Security disability claim or in an emergency, the records must be released promptly or as soon as possible. A physician or facility can charge a reasonable cost for copies and the labor provided but which may not include any cost for searching for and retrieving the records. A non-HIPAA covered physician may charge a base fee of $15.00 and $.50 per page copied for the first 100 pages and $.25 per page in excess of that. No fees can be charged by the provider if the copies are to be used for the benefit of a beneficiary for any claim being made under the Social Security Act or for any federal or state financial needs-based program.
Should the HIPAA-covered physician use electronic records, you can request that electronic copies be provided. The provider can charge a reasonable fee for doing so.
In medical malpractice cases where an issue concerns a surgical procedure or anesthesia error, the hospital may not release documentation of the surgical or anesthesia monitoring despite a request from you or your attorney. In these situations, your personal injury attorney may have to make a motion in court to compel disclosure.
All medical facilities are required to retain medical records for 20 years from the last visit of the patient. A physician must retain your records for 7 years or until the patient attains the age of 18, whichever period is longer. A physician who retires is also required to keep all records for 7 years from the date of that particular patient’s last visit.
Retain the Law Office of Burns and Jain
Most personal injury claims should only be handled by an experienced personal injury attorney. At Burns and Jain, our attorneys will obtain all necessary medical records for your claim. We review the records, forward them to the insurance company, use them to obtain an expert medical witness, and introduce them into evidence at trial.
We have successfully handled injury claims for decades, obtaining millions of dollars in compensation for our clients and their families. Call us today at (617) 227-7423 for a free consultation about your injury claim.